American Contract Law for a Global Age, 2017a

Findings of Fact, Conclusions of Law and Opinion.
This is a nonjury trial. At law, it is the jury that makes the findings of fact. As
in all chancery proceedings, the court is the fact finder.
This court has spent six weeks in the actual trial of the issues before it. The
parties, with their 38 expert and lay witnesses, have
testified. The admissible evidence has been marked.
The testimony and the tangible evidence have been
carefully listened to, noted and reviewed by this court.
The credibility of the witnesses has been examined,
tested and weighed.
This court makes the following findings of fact:
Mr. and Mrs. Stern met when they were both
graduate students at the University of Michigan and
The findings of fact recounted
here are based on the trial
judge’s consideration and
weighing of evidence. Where
evidence was in conflict, the
judge decides which evidence
was more credible. In this
opinion, the findings of fact tell
the story that led to the
agreement we are considering.
began dating in 1969. The couple was married in East Lansing, Michigan, on July 27,
1974, by a minister friend of the family. By now each had earned a Ph.D.—Mr. Stern
in bio-chemistry and Mrs. Stern in human genetics.
The Sterns had discussed having children prior to and after their marriage but
mutually concluded that until Mrs. Stern’s pediatric residency was completed, her
time to devote to family would be inadequate and thus unfair to the child. It was also
concluded that post-residency earnings would make the family more economically
secure.
In 1972 and 1978, Mrs. Stern had experienced several episodes of numbness
in her fingers and toes and some leg weakness. [Mrs. Stern ultimately was diagnosed
with multiple sclerosis, which made the possibility of a pregnancy dangerous to her
health.]
The Sterns explored the possibility of adoption but were discouraged in their
inquiries. They learned that because they were of different religions and they were
an “older couple,” adoption of a newborn infant would be extremely difficult. Indeed,
the multi-year wait would have them in their very late 30's to early 40's if a child
were to become available. Moreover, following the death of William Stern’s mother in
1983, the desirability of having his own biological offspring became compelling to
William Stern, thus making adoption a less desirable alternative
In 1984, Mr. Stern read an ad from the Infertility Center of New York
(hereinafter ICNY) and with the consent of Mrs. Stern, they decided to pursue
surrogate parenting. ICNY is an agency that provides surrogate mother candidates
to applicants seeking a child through an alternative means of reproduction.
Mary Beth Whitehead is presently 29 years old. [She and Richard Whitehead
met and were married in 1973, when she was 16 and he was 24.]
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UNIT 2: THINKING LIKE A CONTRACT LITIGATOR 17